TSA’s Large Aircraft Security Program

Skipper Hyle and I were flying in a flight of four AT-6/SNJ Texans at the Great Georgia Air Show in October of 2008 when he first mentioned an initiative being pursued by the Transportation Security Administration (“TSA”) known as the Large Aircraft Security Program (“LASP”). Skipper related the program would have devastating consequences for operators of large aircraft (i.e., aircraft weighing 12,500 pounds or more). He gave me the website where I could read about the Program. We flew in the show as the “missing man formation” along with Jim Buckley and Stan Music.

I did not give the matter much thought until about October 30, 2008, when the TSA published its Notice of Proposed Rule Making (“NPRM”). I was stunned. With no supporting data and contrary to its previous findings, TSA declared general aviation was largely unregulated and presented a threat to national security. An arbitrary trigger weight of 12,500 pounds was selected by the TSA without any supporting data. In fact, the TSA merely related it had pondered alternate trigger weights such as 10,500 pounds and weights in excess of 12,500 pounds. It had, however, selected 12,500 pounds because that is the definition of a “large aircraft” (requiring a type rating) as defined in Section 1.1 of the Federal Aviation Regulations. There was no logic in reaching this conclusion, nor any analysis to demonstrate that such aircraft to present a threat, other than a bald assertion such as aircraft could carry biological weapons or a nuclear device.

As I reflected on the trigger weight, it was clear the TSA did not have the slightest idea what it was talking about. Any airplane can carry biological weapons. Anthrax could be dispensed from a light sport aircraft or even an ultra light. It requires thirty-three pounds of fissionable material to construct a nuclear device. Didn’t the TSA realize a Cessna 150 could carry a nuclear weapon? The answer to the questing was clearly no. My initial thought was the TSA’s setting the trigger weight at 12,500 pounds was arbitrary and capricious and subject o to a due process challenge under the Fifth Amendment.

It appeared to me the TSA’s initiative was flawed and based on two false premises. First, there was no demonstrable threat to security. Second, there was no rational basis for the trigger weight.

A DISMANTLING OF CORPORATE AVIATION, DISRUPTION OF THE ECONOMY AND WHOLSESALE ABONDONMENT OF BASIC CIVIL LIBERTIES

The TSA NPRM contained the following disturbing elements:

(1) Pilots and flight attendants must undergo criminal background checks at their expense with the risk of false identification. How could a citizen successfully challenge the TSA’s conclusion that he is a security risk if TSA is using Sensitive Security Information (“SSI”)?

(2) Aircraft operators would have three months to implement an aircraft security program at their expense.

(3) All passengers to be flown aboard the aircraft would have be vetted against a terrorist watch list and TSA Selectee list. While the program currently in place for air taxi operators and airlines allows them vet using the TSA’ selectee list. While the program currently in place for air taxi operators and airlines allows them to vet using the TSA’s data base, the TSA initiative envisions setting up a cottage industry of watch list service providers who would dispense approvals or rejections for the passengers being vetted. This requirement would be imposed even though the passengers are known to the pilots, are members of the pilot’s family or are employees of the company the pilot works for who are known to the pilot. While the TSA suggests there could be method of approving passengers who are repetitive without vetting them for every flight, personnel with experience in the industry report vetting for every passenger is presently required before every flight.

(4) The aircraft operator would have to appoint and train an aircraft security coordinator a ground security coordinator and an in-flight security coordinator.

(5) The aircraft operator would under every two years an audit by a third party which the aircraft operator would pay for.

(6) A host of burdens would also be imposed on operators of reliever airports. These would include providing an airport security officer, training and maintaining records on law enforcement officers and being able to receive and distribute sensitive security information.

An important reason for having an airplane is to have the freedom and flexibility to travel. If the aircraft cannot be put to its intended use, why own it? If private aircraft which enhance productivity are not available to be properly employed, the economy declines. Aircraft sales and airport use declines. The TSA’s proposal is a recipe for disaster in an already depressed economy at the time these words are written.

EN ROUTE TO WASHINGTON TO MEET CONGRESSMAN SAM GRAVES AND OTHERS

Today began with a 4:30 a.m. wakeup to catch a 7:30 a.m. flight to Washington. Arriving in Washington at 9:00 a.m., Marlene made her way to the Smithsonian while I jumped on the Metro headed for West Church Station, Dulles Airport and finally the Crown Plaza Hotel near Dulles. I arrived at 11:20 a.m. in time to meet Skipper and a number of other interesting people.

A SERIES OF INFORMATIVE MEETINGS AND REVELATIONS

Over the course of the morning and afternoon Skipper, Mike Collier (a businessman and pilot from Atlanta) had a series of meetings with Congressman Graves; his aide, Mike Matousek; Craig Spence of the AOPA and Doug MacNair of the EAA. We learned a number of important items during these meetings.

(1) The TSA initiative was precipitated by complaints made by Vice-President Dick Cheney about airplanes flying over his property.

(2) In 2005 the TSA had run this proposal up the flagpole and it was promptly shot down by the Office of Management and Budget.

(3) A TSA study in December of 2008, declared general aviation was not a serious security threat.

(4) The DHS/TSA has no uniform policy on the level of threat to be prevented. In other words, there is no national standard for security. Are we trying to protect every house, block by block or has it been quantified at a higher level? The fact that the TSA is attempting to regulate the threat presented by a 12,500 pound aircraft but ignore the threat of a tractor trailer truck belies the argument it has a national standard on security.

(5) On February 11, 2009, Congressman Graves hosted a roundtable discussion with members of the aviation stakeholders, AOPA, NBAA, EAA, etc.

(6) On February 12, 2009, Congressman Graves conducted a small business roundtable discussion involving participation by the Department of Commerce. The Department is very concerned about the negative economic impact the TSA initiative will have on the economy. Obviously, the TSA gave no meaningful or searching consideration to the economic implications of their ambitions.

(7) In 2006, Congress requested the DHS/TSA conduct a study extending the TSA selectee list and no fly list beyond civil aviation. DHS noted that such an initiative would raise serious public policy considerations. As best can be determined, a civil liberties impact assessment was never developed or completed on this issue.

(8) The American Civil Liberties Union at the national level is monitoring the TSA’s Large Aircraft Security Program and is poised to file legal action depending on the outcome of the this struggle.

(9) The Electronic Freedom Foundation is concerned about the electronic security of the data that would be communicated to the Watch List Service Providers. Apparently, 43% of the positive returns in the existing Twelve Five Program vetting process are false positives.

(10) The feeling is that opposition to LASP at the congressional level will be bi-partisan.

(11) Air medical helicopter operators have weighed in on LASP. Frequently, the patients are delivered to “large” aircraft for flights to hospitals. LASP will adversely impact the air ambulance industry for this reason.

(12) The number of comments to the Public Docket on the TSA’s LASP has doubled since Craig Fuller of the AOPA dispatched an email to all AOPA members urging them to file comments and contact their congressmen.

(13) Section 154.233 in the TSA proposed rule about not serving alcohol to Federal Air Marshalls was lifted verbatim from Part 121 of the Federal Aviation Regulations.

(14) Recently, TSA implemented Security Directive SD-1452-04-08F expanding the necessity for credentialing pilots at a number of airports. The implementation of this initiative was a “rulemaking” without TSA having followed the notice and public comment provisions of the Administrative Procedure Act. EAA is hopeful the TSA will see the error of its ways and rescind the Security Directive.

(15) TSA opined the economic impact of the LASP will be between $900,000,000 to $1,900,000,000 over a ten year period. However, an EAA study puts the number at closer to $1,200,000,000 annually meaning the adverse economic impact over ten years would be One Trillion, Two Hundred Billion Dollars.

(16) The current cost of the airlines per passenger to “vet” the passenger for a flight into Reagan International Airport is $15. This is the actual cost of paying the TSA’s charges without the “profit” for a watch list service provider.

(17) There is currently a great deal of duplicated effort in national security. A pilot may have any number of redundant security or governmental-issued credentials. There currently is no system for sharing the data or consolidating the existing overlapping credentialing systems.

CONCLUSION

The series of meetings in Washington provided real insights into the challenges presented to the general aviation community by the recent security initiatives of DHS/TSA. The Large Aircraft Security Program and Security Directive were open issues of business that outgoing Secretary Chertoff directed his lieutenants implement as the Bush Administration transferred power to the President Obama’s cabinet. It is hoped that the efforts of the alphabet groups as well as grass roots organizers like Skipper Hyle, Mike Collier and the author will result in the withdrawal of the TSA’s Large Aircraft Security Program.